Filed: Feb. 10, 2004
Latest Update: Mar. 02, 2020
Summary: Opinions of the United 2004 Decisions States Court of Appeals for the Third Circuit 2-10-2004 Dorsey v. Pittsburgh Assoc Precedential or Non-Precedential: Non-Precedential Docket No. 03-1882 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2004 Recommended Citation "Dorsey v. Pittsburgh Assoc" (2004). 2004 Decisions. Paper 1012. http://digitalcommons.law.villanova.edu/thirdcircuit_2004/1012 This decision is brought to you for free and open access by the O
Summary: Opinions of the United 2004 Decisions States Court of Appeals for the Third Circuit 2-10-2004 Dorsey v. Pittsburgh Assoc Precedential or Non-Precedential: Non-Precedential Docket No. 03-1882 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2004 Recommended Citation "Dorsey v. Pittsburgh Assoc" (2004). 2004 Decisions. Paper 1012. http://digitalcommons.law.villanova.edu/thirdcircuit_2004/1012 This decision is brought to you for free and open access by the Op..
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Opinions of the United
2004 Decisions States Court of Appeals
for the Third Circuit
2-10-2004
Dorsey v. Pittsburgh Assoc
Precedential or Non-Precedential: Non-Precedential
Docket No. 03-1882
Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2004
Recommended Citation
"Dorsey v. Pittsburgh Assoc" (2004). 2004 Decisions. Paper 1012.
http://digitalcommons.law.villanova.edu/thirdcircuit_2004/1012
This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
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NOT PRECEDENTIAL
THE UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 03-1882
___________
PATTY JO DORSEY, Executors of the Estate of Philip W. Dorsey III;
DANIEL H. BOOKER; REDMOND JOHNSON, JR.; PHILIP S. DORSEY,
Appellants
vs.
PITTSBURGH ASSOCIATES, t/d/b/a
PITTSBURGH PIRATES BASEBALL CLUB
___________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
(D.C. No. 02-cv-00353)
District Judge: The Honorable Donetta W. Ambrose
___________
ARGUED JANUARY 27, 2004
BEFORE: NYGAARD and FUENTES, Circuit Judges,
and O’NEILL,* District Judge.
(Filed: February 10, 2004)
___________
* Honorable Thomas N. O’Neill, Jr., Senior District Judge for the United States
District Court for the Eastern District of Pennsylvania, sitting by designation.
Walter G. Bleil, Esq. (Argued)
Samuel P. Kamin, Esq.
Goldberg Kamin & Garvin
437 Grant Street
1806 Frick Building
Pittsburgh, PA 15219
Counsel for Appellants
Robert F. Prorok, Esq. (Argued)
James R. Haggerty, Esq.
David J. Burton, Esq.
Reed Smith
435 Sixth Avenue
Pittsburgh, PA 15219
Counsel for Appellee
___________
OPINION OF THE COURT
___________
NYGAARD, Circuit Judge.
The appellants, Philip Dorsey, III,1 Daniel Booker, and Redmond Johnson,
appeal the District Court’s summary judgment order in favor of Pittsburgh Associates.
Appellants applied for and were denied positions as ticket sellers at PNC Park. The
District Court held that appellants did not present a prima facie case of race and age
discrimination because they failed to show they were qualified for the job sought. We
will affirm, but do so on an alternate ground. We conclude that appellants satisfied the
1. After this case was filed, Philip Dorsey, III died. His estate replaced him in the
lawsuit. As a matter of convenience, we refer to Dorsey as the appellant.
2
threshold standard of qualification, but their claim fails at the pretext step of the familiar
McDonnell Douglas analysis.
I.
Because we write exclusively for the parties, we recite the facts only briefly.
Pittsburgh Associates owns and operates the Pittsburgh Pirates baseball franchise.2 Until
2001, the Pirates played their home games at Three Rivers Stadium, but in the 2000-2001
off-season they moved to a new stadium called PNC Park. Because they were the
stadium operators at PNC Park, the Pirates were responsible for staffing the stadium
during games.
The Pirates made several decisions that were intended to make attending a
game at PNC Park a different and better experience than it had been at Three Rivers
Stadium. The Pirates strived for increased customer service at PNC Park. This customer
service focus was buttressed by an upgrade to a new ticketing system.
Before the 2001 season opened, the Pirates conducted hiring for ticket
seller, greeter, and host positions through an application and interviewing session on
January 22, 2001. At that session, the Pirates emphasized their customer service vision
for PNC Park. The Pirates hired applicants for ticket seller positions based on direct
knowledge of their work performance at Three Rivers Stadium, without consulting
2. For the sake of convenience, we will refer to Pittsburgh Associates as “the
Pirates.”
3
interview results or requiring computer proficiency testing. Because Pirates staff had no
interaction with greeters and hosts at Three Rivers Stadium, applicants for those positions
were evaluated through interviews. Of 369 applicants for ticket seller, greeter, and host
positions, the Pirates hired 336.
Appellants are three of only four rejected ticket seller applicants.3 They are
African American men, ages 74, 69, and 58. They had worked as ticket sellers at Three
Rivers Stadium for 30, 30, and 12 years, respectively. Each appellant received an
“acceptable” rating based on his interview on January 22, 2001, but was denied the job as
ticket seller on the basis of Pirates’ executives already-formed impressions of his
computer and customer service skills.
After being denied jobs at PNC Park, appellants filed suit alleging racial
discrimination under Title VII of the Civil Rights Act of 1964 (“Title VII”) and 42 U.S.C.
§ 1981, age discrimination under the Age Discrimination in Employment Act (“ADEA”),
and discrimination under the Pennsylvania Human Relations Act (“PHRA”). The District
Court granted summary judgment for the Pirates because appellants failed to show they
were qualified for the ticket seller position and, as a result, did not make out a prima facie
case of age or race discrimination.
II.
3. The rejected Ticket seller applicant who is not participating in this lawsuit is a
white male.
4
We have jurisdiction under 28 U.S.C. § 1291, because we are asked to
review a summary judgment order by the District Court that entirely disposed of the case.
We have plenary review of the District Court’s decision to grant summary judgment. See
Blair v. Scott Specialty Gases, 283 F.3d 595, 602-03 (3d Cir. 2002).
In McDonnell Douglas Corp. v. Green, the Court established a burden-
shifting framework for claims under Title VII. 411 U.S. 792, 802 (1973). The plaintiff
must first establish a prima facie case by meeting several conditions: (1) he is a member
of a protected class, (2) he applied for and was qualified for an open position, (3) he was
rejected, and (4) after rejection, the position remained open and the employer continued
accepting applications.
Id. Then, if the plaintiff is successful in making out a prima facie
case, the burden shifts to the defendant “to articulate some legitimate, nondiscriminatory
reason” for his action.
Id. at 802. “Finally, should the defendant carry this burden, the
plaintiff then must have an opportunity to prove by a preponderance of the evidence that
the legitimate reasons offered by the defendant were not its true reasons, but were a
pretext for discrimination.” Jones v. Sch. Dist. of Phila.,
198 F.3d 403, 410 (3d Cir.
1999) (citing Texas Dep’t of Cmty. Affairs v. Burdine,
450 U.S. 248, 252-53 (1981)).
We use the McDonnell Douglas analysis for each of the discrimination
claims made by appellants here. See Narin v. Lower Merion Sch. Dist., 206 F.3d 323, 331
(3d Cir. 2000) (using the McDonnell Douglas framework in an ADEA context); Gomez v.
Allegheny Health Servs., Inc.,
71 F.3d 1079, 1084 (3d Cir. 1995) (stating that PHRA
5
claims are analyzed under McDonnell Douglas “consistently with interpretations of Title
VII”).
A. Prima Facie Case
The District Court concluded that appellants failed to make out a prima
facie case of discrimination because they did not show they were qualified for ticket seller
positions. We conclude that appellants have presented sufficient evidence to create a
prima facie case.
We have noted that if a plaintiff is not qualified for the job he seeks, we can
reject a discrimination claim without the heavy lifting that is required if a prima facie case
is made out. See, e.g., Pivirotto v. Innovative Sys., Inc., 191 F.3d 344, 352 n.4 (3d Cir.
1999). However, “‘[w]hile objective job qualifications should be considered in
evaluating the plaintiff’s prima facie case, the question of whether an employee possesses
a subjective quality . . . is better left to’ consideration of whether the employer’s
nondiscriminatory reason . . . is pretext.” Sempier v. Johnson & Higgins,
45 F.3d 724,
729 (3d Cir. 1995) (quoting Weldon v. Kraft, Inc.,
896 F.2d 793, 798 (3d Cir. 1990)).
“[T]o deny the plaintiff an opportunity to move beyond the initial stage of establishing a
prima facie case because he has failed to introduce evidence showing he possesses certain
subjective qualities would improperly prevent the court from examining the criteria to
determine whether their use was mere pretext.”
Id. (quoting Weldon, 896 F.2d at 798-99).
6
The Pirates argue, as they did before the District Court, that appellants were
not qualified for positions as ticket sellers. This argument is intertwined with the
assertion that appellants’ lack of computer and customer service skills constitutes a
legitimate reason for not hiring them. The District Court accepted the Pirates’ argument
and chose to dispose of the case at the first stage of McDonnell Douglas. In doing so, the
District Court improperly failed to examine the hiring criteria to determine whether their
use was mere pretext. See Weldon, 896 F.2d at 798-99. We will not follow suit and
collapse the entire McDonnell Douglas analysis into this first step.
Id. at 799.
B. Burden-Shifting Under McDonnell Douglas
We conclude that the District Court erred by not proceeding to the pretext
analysis under McDonnell Douglas. This error, however, was not prejudicial to
appellants. Had the Court proceeded to the pretext analysis, it would have reached the
same result.
Appellants having made out a prima facie case, a presumption arises that
the Pirates discriminated in their hiring decision. McDonnell Douglas, 411 U.S. at 802.
The Pirates can successfully dispel that presumption by presenting a nondiscriminatory
reason for their decision not to hire appellants.
Id. At this second step of the McDonnell
Douglas analysis, “the defendant must clearly set forth, through the introduction of
admissible evidence, reasons for its actions, which, if believed by the trier of fact, would
support a finding that unlawful discrimination was not the cause of the employment
7
action.” St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 507 (1993) (internal citations and
quotations omitted) (emphasis in original).
To accompany its summary judgment motion, the Pirates presented
deposition testimony from several Pirates executives who had personal interactions with
appellants at Three Rivers Stadium. Mike Krachkowski and Dave Wysocki, Assistant
Directors of Ticket Operations for the Pirates, were familiar with each appellant through
their responsibility for managing all game-day operations relating to ticket sales and
supervising ticket sellers on a day-to-day basis. John Barna, Ticket Office Assistant for
the Pirates, was familiar with appellants because he monitored their daily sales report
records. According to Krachkowski, Wysocki, and Barna, appellants lacked the computer
and customer service skills required of ticket sellers at PNC Park. Specifically, these
individuals testified that appellants each struggled with the Ticket Master computer
system at Three Rivers Stadium, which was substantially easier to operate than the
Tickets.com system being installed at PNC Park.
The deposition testimony indicated that Dorsey relied solely on the function
keys to sell tickets, and as a result was unable to accommodate purchasers’ specific
requests for seats. Booker could not fix simple computer problems or handle basic
customer requests. Johnson, like Dorsey, relied solely on the function keys to sell tickets.
Each appellant was also subpar in terms of customer service. The Pirates received
multiple complaints about Dorsey being rude to customers and exhibiting poor skills at
8
his job. Booker frequently exchanged tickets for games already played (clearly violating
company policy) and needed to be reminded of ongoing promotions and sales. A line
frequently formed at Johnson’s booth because he was slower than other ticket sellers.
Additionally, all three appellants had trouble balancing their cash drawers or their daily
sales reports at the end of shifts.
It is entirely reasonable that the Pirates chose not to hire appellants because
their work performance at Three Rivers Stadium did not meet the new, higher standards
being imposed at PNC Park. Thus, because the Pirates have presented a legitimate,
nondiscriminatory reason for its hiring decisions, the McDonnell Douglas burden shifts
back to appellants.
Once a defendant has presented a legitimate, nondiscriminatory reason for
its hiring decision, a plaintiff seeking to avoid summary judgment must present pretext
evidence that: (1) casts doubt upon each of the reasons offered by defendant for the
employment action so that a fact-finder could reasonably conclude that each was a
fabrication; or (2) allows the fact-finder to infer that discrimination was more likely than
not the cause for the employment action. Fuentes v. Perskie, 32 F.3d 759, 761 (3d Cir.
1994). Appellants have not made either showing. Appellants show few, if any,
“weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the
9
[Pirates’] proffered legitimate reasons” for not hiring them.4 Id. at 765. Hence, because
there is a lack of a genuine issue of fact on whether the Pirates’ proffered reason was
pretextual, summary judgment for the Pirates was appropriate.
C. Statistics
The statistics appellants attempted to present before the District Court do
nothing to save their claim, as the statistics do not make out a case of pretext. While
“statistics as to . . . employment policy and practice may be helpful to a determination of
whether . . . [a] refusal to rehire . . . conformed to a general pattern of discrimination,”
here they are unavailing. McDonnell Douglas, 411 U.S. at 805. The statistics appellants
propose to present are “based on an applicant pool containing individuals lacking minimal
qualifications for the job” and are thus of little probative value. Watson v. Ft. Worth
Bank & Trust,
487 U.S. 977, 997 (1988); see also Berger v. Iron Workers Reinforced
Rodmen,
843 F.2d 1395, 1420 (D.C. Cir. 1988) (“It is well established that if a statistical
model does not take into account the legitimate, objective qualifications for the jobs being
analyzed, then it fails sufficiently to focus on an appropriate labor pool, and is therefore
deficient in establishing a prima facie case.”).
III.
4. Specifically, appellants argue that other Three Rivers Stadium employees lacking
the requisite computer skills were offered alternate jobs at PNC Park’s will call window.
The record shows, however, that those employees were automatically given the positions
on the basis of seniority.
10
For the foregoing reasons, we will affirm the District Court’s order granting
summary judgment to the Pirates. We do so because appellants have failed to show that
the Pirates’ proffered reason for not hiring them was pretextual.
